Supreme Court sends carbon regulation back to the EPA

The US Supreme Court tells the EPA that it could regulate carbon emissions if …

The US Supreme court has handed down a decision on carbon emissions that is decisive in a number of respects, but leaves us without an answer to the ultimate question at hand: should the EPA regulate automotive carbon emissions? The decision in Massachusetts v. EPA says that it could if it wanted to and compels the EPA to both make a decision and explain the logic behind it.

The case arose because Massachusetts asked the EPA to issue regulations that limited the carbon released by automobiles, arguing that it was a pollutant that posed dangers to the state as defined by the Clean Air Act. The EPA declined, triggering the suit, which was later joined by a number of other states and private organizations. The case reached the Supreme Court following a mixed decision by a D.C. Circuit Court in which each of the three judges that heard the appeal submitted their own opinion.

The case hinged on three questions: do the states involved have standing to bring the suit, does CO2 constitute a pollutant according to the Clean Air Act, and should the EPA regulate it accordingly. The EPA argued no on all three counts, focusing on the legal precedent associated with the Clean Air Act for the first two questions. They also argued that adopting regulations for CO2 would interfere with other governmental agencies and administration policy. At no point did the EPA suggest, however, that there was any problem with the science suggesting that CO2 posed a danger. This seems to have come back to haunt them.

On the first matter, a five judge majority ruled that states have standing on this issue due to their loss of land from rising oceans and the ecological and financial damage expected to be caused by changes in precipitation. A minority of justices—Alito, Roberts, Scalia, and Thomas—dissented on this point, and accepted the EPA's argument that the CO2 emitted by US automobiles only contributed to a fraction of the expected damage due to climate change, so regulating it would not prevent the states from suffering damage. This reasoning was rejected by the majority because it suggested that any regulatory effort must completely eliminate the risk, or not be worth attempting. In the majority view, the "EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both 'actual' and 'imminent.'"

There was no dissent regarding whether CO2 was a pollutant according to the terms of the Clean Air Act, which left a single question: should the EPA regulate it? According to the same five-judge majority, the EPA's decision not to contest the evidence regarding dangers caused by a changing climate presented by the states left it in violation of the directives of the Clean Air Act. Their ruling stated, "Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do... EPA has refused to comply with this clear statutory command." In other words, if the EPA does not want to regulate CO2 emissions, it needs to come up with a better reason than what they've already presented to the courts. The minority dissented here, as well, arguing that the EPA's claims of policy complexities were sufficient cause for inaction.

This ruling appears to put the ball in the EPA's court, and leaves it with three choices, none of them likely to be appealing. It could attempt to claim that CO2 emissions do not constitute an environmental threat, but doing so would run into problems on almost every level: the administration and scientific community think they are a threat, and the case has accumulated collection of uncontested testimony indicating that they are. The EPA has already explored the second alternative, namely finding justifications for inaction, and the Supreme Court found its arguments lacking.

The final alternative, of course, is to bite the bullet, and attempt to regulate automotive CO2 emissions. In all probability, the current EPA could essentially punt this issue to the next administration by devising a sufficiently drawn-out process for developing regulations. In the end, the fate of EPA carbon regulations, much like the fate of the emissions caps being discussed in Congress, are likely to depend primarily upon the results of the next presidential election.